M ODELO DE NEGOCIO

Judge Forrest held that section 1021(b)(2) violated the Fifth Amendment because it is vague,²⁹¹ and thus fails to provide notice of what conduct may subject an individual to detention.²⁹² Throughout the opinion, Judge Forrest criticized not only the statute itself but also the government’s litigation position because it was a moving target,²⁹³ and it failed to provide any specific definitions of contested terms like “substantially supported”

285. See Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL 3999839, at *15 (S.D.N.Y.

Sept. 12, 2012) (“The Supreme Court made it clear that its view of the AUMF related to detention on the field of battle.”); see also Plaintiffs-Appellees Brief, supra note 149, at 3.

286. Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004).

287. See Al-Marri v. Pucciarelli, 534 F.3d 213, 232 (4th Cir. 2008) (Motz, J., concurring) (emphasizing the “narrowness” of the holding in Hamdi and limiting it to those captured on the battlefield); see also Landau, supra note 58, at 692 n.150 (stating that the decision in Hamdi “effectively made battlefield capture a prerequisite to executive detention”).

288. Bradley & Goldsmith, supra note 15, at 2049.

289. Larry Shaughnessy, Panetta: America Beating al Qaeda but Hasn’t Won Yet, CNN (Nov. 20, 2012), http://security.blogs.cnn.com/2012/11/20/panetta-america-beating-al-qaeda -but-hasnt-won-yet/?iref=allsearch.

290. See Senators Amici Brief, supra note 22, at 22 (“[T]here is no requirement that a detainee be captured on any particular ‘field of battle’—a particularly inappropriate limitation for an authorization of force against terrorist entities that operate worldwide.”).

291. Hedges v. Obama, No. 12 Civ. 331(KBF), 2012 WL 3999839, at *2 (S.D.N.Y. Sept.

12, 2012) (“The statute’s vagueness falls short of what due process requires.”).

292. Id. at *40 (“People of common intelligence must not have to guess at the meaning of a statute that may subject them to penalties.”).

293. Id. at *12 (“There is no guarantee that the position will not—or cannot—change again.”); see also Brief of Amicus Curiae Bill of Rights Defense Committee in Support of Plaintiffs-Appellees and Affirmation at 9–11, Hedges v. Obama, Nos. 12-3176(L), 12-3644 (2d Cir. Dec. 17, 2012), available at http://www.bordc.org/resources/hedgesamicus.pdf (arguing that the government’s changing litigation position is a calculated effort to avoid substantive judicial review of detention practices).

2888 FORDHAM LAW REVIEW [Vol. 81 and “associated forces.”²⁹⁴ The government essentially conceded the

vagueness of these terms,²⁹⁵ and Judge Forrest stated that they had not been adequately defined by previous case law.²⁹⁶

The government argued in Hedges—and continues to argue on appeal—

that force authorizations and military statutes, like the AUMF and section 1021, should not be subject to vagueness review by the courts.²⁹⁷ This is because, as the Supreme Court has explained, “Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas.”²⁹⁸ Additionally, the government stated that the terms in section 1021 should not have fixed and rigid definitions, but should be evaluated on a case-by-case basis.²⁹⁹ Judge Forrest rejected this argument and equated section 1021 with a criminal statute because it permits an individual to be indefinitely imprisoned.³⁰⁰ The problem was further compounded, as Judge Forrest noted, by the lack of a scienter element in the statute, meaning that an individual could be detained without any “knowing conduct.”³⁰¹

Some scholars and commentators agree with Judge Forrest that the terms used in section 1021(b)(2) are impermissibly vague.³⁰² They believe that terms like “substantial support” and “associated forces” are ambiguous at best³⁰³ and, at worst, allow for the possibility of abuse or manipulation.³⁰⁴

294. Hedges, 2012 WL 3999839, at *2 (“[T]he Government nevertheless did not provide particular defintions.”).

295. Id. at *41.

296. Id. at *43 (“The terms as used in § 1021(b)(2) have not been previously defined in case law.”).

297. See Government Appellate Brief, supra note 254, at 3 (“[A] statute authorizing the use of military force in broad terms is not subject to . . . challenge for being unconstitutionally vague.”); see also Senators Amici Brief, supra note 22, at 3–4 (“[A]uthorizations for exercise of the war power—as opposed to the exercise of that power in specific circumstances—have never been subject to review for vagueness because they structure the operations of the government and, unlike statutes creating criminal offenses, do not work directly on individuals or impair individuals’ rights.”).

298. Zemel v. Rusk, 381 U.S. 1, 17 (1965).

299. See 2009 Brief, supra note 259, at 2.

300. See Hedges, 2012 WL 3999839, at *41–42 (“A citizen has just as much interest—

indeed, perhaps more—in understanding what conduct could subject him or her to indefinite military detention without a trial as he or she does in understanding the parameters of a traditional criminal statute that carries a statutory maximum term of imprisonment and cannot be enforced in the absence of full criminal due process rights.”).

301. Id. at *43.

302. See Glenn Greenwald, PolitiFact and the Scam of Neutral Expertise, SALON (Dec. 5, 2011), http://www.salon.com/2011/12/05/politifact_and_the_scam_of_neutral_expertise/

(noting that people like Congressman Ron Paul and law professor Jonathan Hafetz have objected to the language used in section 1021).

303. See Webber, supra note 33, at 203 (“The definitions of ‘part of’ and ‘substantial support’ are not clear.”); see also Cronogue, supra note 14, at 397 (“[T]he proposal also adds the ambiguous terms ‘associated forces’ and ‘substantially supporting’ . . . . [T]he breadth and scope of these terms seemingly depends on the Executive’s determination and framing of the conflict.”).

304. See Greenwald, supra note 100, at 3 (stating that the terms “substantially supports”

and “associated forces” are “extremely vague terms subject to wild and obvious levels of abuse”).

2013] A MORE MEANINGFUL DETENTION STATUTE 2889 The government has argued, however, that congressional statutes relating to

national security must be vague, and that it is the responsibility of the President as Commander-in-Chief (and not the courts) to interpret and execute them.³⁰⁵ Below, the terms “substantial support” and “associated forces” are analyzed in the context of Hedges, the definitions provided by the government on appeal, and similar statutes.

In Hedges, the government failed to define “substantial support” or to provide any examples demonstrating what the term means.³⁰⁶ The government also failed to provide a definition of the term when pressed by the D.C. District Court three years earlier.³⁰⁷ The plaintiffs in Hedges argue that the addition of the term “substantial support” in section 1021(b)(2) is a clear attempt to extend detention authority beyond the AUMF and to make it easier for the government to justify questionable detentions.³⁰⁸

On appeal to the Second Circuit, the government has now provided a definition of substantial support that is shaped by the laws of war and the Geneva Conventions and includes individuals who “bear sufficiently close ties to those forces and provide them support that warrants their detention in prosecution of the conflict.”³⁰⁹ The government lists examples of supporting individuals who can be detained under the Geneva Conventions, but these examples seem more relevant to conventional conflicts with nation-states and less applicable to the unconventional fight against terrorism.³¹⁰

Even with the government’s new definition, there is still potential uncertainty about the type and level of support sufficient to subject an individual to detention.³¹¹ In contrast, in the criminal statute that proscribes

“providing material support to terrorists,” there is a thorough definition of material support and examples of prohibited activities.³¹² The examples provide clear notice of what type of conduct is illegal,³¹³ and the statute even further defines terms like “training” and “expert advice or

305. See Government Appellate Brief, supra note 254, at 17.

306. Hedges, 2012 WL 3999839, at *12 (“In particular, when the Court asked for one example of what ‘substantially support’ means, the Government stated, ‘I’m not in a position to give one specific example.’”).

307. See supra note 229 and accompanying text; see also Plaintiffs-Appellees Brief, supra note 149, at 9 (“[Section] 1021(b)(2) leaves the term ‘substantially supported’

completely undefined (and it is defined nowhere else in any federal statute).”).

308. See Plaintiffs-Appellees Brief, supra note 149, at 15–20.

309. Government Appellate Brief, supra note 254, at 27–28.

310. See id. at 28 (stating that individuals can be detained if they are “civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units”).

311. See Cronogue, supra note 14, at 397 (“Is there a threshold level of support beyond which we call it ‘substantial’?”).

312. See 18 U.S.C. §§ 2339A–2339B (2006).

313. See id. § 2339A(b)(1) (examples of illegal conduct include providing “financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials”).

2890 FORDHAM LAW REVIEW [Vol. 81 assistance.”³¹⁴ The material support statute was recently challenged for

(among other things) vagueness, but the Supreme Court held that it was not vague because of the internal definitions.³¹⁵ The material support statute also has a scienter element (the support must be “knowingly” provided),³¹⁶ which the Supreme Court held “further reduces any potential for vagueness.”³¹⁷ Section 1021 lacks both internal definitions and a scienter element.³¹⁸

Judge Forrest also found that the term “associated forces” was vague, although she recognized that Congress could easily remedy the vagueness of the term by providing further clarification.³¹⁹ Without a definition, it is unclear how closely an organization must be tied to Al Qaeda or the Taliban to be considered an associated force.³²⁰ On appeal, the government has provided a definition of an “associated force” that has two characteristics:

“(1) an organized, armed group that has entered the fight alongside al-Qaeda, [that] (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.”³²¹ This is a narrow definition that incorporates the law of war concept of cobelligerency.³²² It excludes advocacy organizations that are not “armed groups,” and it even excludes armed organizations that do not “fight alongside al Qaeda.”³²³ This new definition may eliminate many of the vagueness concerns expressed by Judge Forrest in Hedges.